United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant's Motion for
Summary Judgment (DN 27). The motion is ripe for
adjudication. For the reasons outlined below, the motion is
STATEMENT OF FACTS AND CLAIMS
an insurance coverage dispute. On February 23, 2016, a fire
caused a total loss of the home of Plaintiff Russell Hammer
(“Plaintiff”). (Compl. ¶¶ 1-3, 5, 12,
DN 1). At the time, State Auto Property & Casualty
Insurance Co. (“Defendant”) provided property
insurance coverage for Plaintiff's home. (Compl. ¶
5; Compl. Ex. 1, DN 1-3). Plaintiff alleges he filed a claim
with Defendant, but that Defendant has neither paid the claim
nor offered a reason for its inaction. (Compl. ¶ 18).
motion seeks summary judgment on a discrete issue that
requires the Court to consider not the events surrounding the
fire but rather the effect of a bankruptcy filed and
dismissed in 2009. At that time, Plaintiff, acting pro se,
filed for bankruptcy under Chapter 13. See No. 09-10846-JAL
(Bankr. W.D. Ky. 2009). In his initial petition, Plaintiff
listed the value of the subject residence at $300, 000.
(Def.'s Mot. Sum. J. Ex. 8, at 1, DN 27-10). Plaintiff
valued his personal property at the time at $22, 500.
(Def.'s Mot. Summ. J. Ex. 8, at 4). The Bankruptcy Court
ordered Plaintiff to pay the filing fee of $274 in
installments. (Def.'s Mot. Summ. J. Ex. 9, at 1, DN
subsequently converted the bankruptcy to a Chapter 11 with
assistance of counsel and declared the value of his residence
to be $110, 000 and the value of his personal property to be
$24, 051. (Def.'s Mot. Summ. J. Ex. 13, at 13-16, DN
27-15). The Bankruptcy Court ordered Plaintiff to attend the
Section 341 meeting of creditors. (Def.'s Mot. Summ. J.
Ex. 24, at 1, DN 27-26). Following the Section 341 meeting,
however, the U.S. Trustee moved to dismiss Plaintiff's
bankruptcy. (Def.'s Mot. Summ. J. Ex. 15, at 1-3, DN
27-17 [hereinafter Trustee's Mot.]). The Trustee stated
Plaintiff failed to amend his bankruptcy schedules with
respect to a No. of assets. (Trustee's Mot. 2).
Additionally, Plaintiff allegedly failed to provide the
Trustee with required financial documents despite repeated
requests. (Trustee's Mot. 1-2). After a hearing, the
Bankruptcy Court granted the Trustee's motion and
dismissed Plaintiff's case on December 18, 2009.
(Def.'s Mot. Summ. J. Ex. 17, at 1, DN 27-19).
Court has diversity jurisdiction over this matter because the
parties are citizens of different states, and the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1).
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed.R.Civ.P. 56(a). The moving party
bears the initial burden of stating the basis for the motion
and identifying evidence in the record that demonstrates an
absence of a genuine dispute of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the non-moving
party must then produce specific evidence proving the
existence of a genuine dispute of fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual dispute
exists by “citing to particular parts of the materials
in the record” or by “showing that the materials
cited do not establish the absence . . . of a genuine dispute
. . . .” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient”
to overcome summary judgment. Anderson, 477 U.S. at
seeks summary judgment on the grounds of judicial estoppel,
arguing Plaintiff is bound by the representations he made to
the Bankruptcy Court with respect to the value of his
residence and personalty. (Def.'s Mem. Supp. Mot. Summ.
J. 6, DN 27-1 [hereinafter Def.'s Mot.]). Specifically,
Defendant notes that Plaintiff represented to the Bankruptcy
Court that the value of his residence was $110, 000 yet
claimed a loss of $397, 281.76 for the same residence after
the fire. (Def.'s Mot. 12). Likewise, Plaintiff valued
his personalty at the time of his Chapter 11 filing in 2009
at $24, 051 yet represented after the fire that his personal
property loss was $399, 605. (Def.'s Mot. 11). Defendant
argues Plaintiff made a representation to the Bankruptcy
Court, the position was adopted by the Bankruptcy Court, and
Plaintiff must be bound by that representation to prevent his
gaming the system. (Def.'s Mot. 15-16).
responds that when he reported his assets for purposes of the
2009 bankruptcy, he listed prices consistent with garage sale
or liquidation values. (Pl.'s Resp. Def.'s Mot. Summ.
J. 11-13, DN 33 [hereinafter Pl.'s Resp.]). On the other
hand, Plaintiff contends he calculated the replacement value
of lost property-consistent with his insurance policy-when
submitting his claim. (Pl.'s Resp. 12-13). Additionally,
Plaintiff argues Defendant has failed to recognize the
possibility that Plaintiff acquired additional personal
property in the seven years between filing bankruptcy and the
fire. (Pl.'s Resp. 13-14). With respect to the residence,